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Lewin v Lewin

Lewin v Lewin

Case [2019] NSWSC 380 5 April 2019

Co-ownership

Statutory Interpretation

Unconscionable Conduct

Costs

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Lewin v Lewin [2019] NSWSC 380
Hearing dates: On the papers
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Orders to be made appointing trustees for the sale of a parcel of shares in a home unit company.

Catchwords:
PERSONAL PROPERTY – co-ownership – statutory trust for sale – application under Conveyancing Act 1919 (NSW), s 66G(1) for appointment of trustees for sale by co-owner of shares in a home unit company – whether shares are “property” for the purposes of s 66G – whether shares held in “co-ownership” for the purposes of s 66G – whether ownership is “in possession” – appropriate for orders to be made appointing trustees for sale

COSTS – proceedings for appointment of trustees for sale of property under Conveyancing Act 1919 (NSW), s 66G – departure from the usual rule – defendant resisted appointment of trustees for sale based on unsubstantiated allegations of impropriety or fraud – whether defendant’s conduct unreasonable – defendant’s conduct resulted in plaintiff incurring unnecessary legal costs – half of the plaintiff’s costs ordered to be paid out of the defendant’s share of the proceeds of sale
WORDS AND PHRASES – “property” – “in possession”
Legislation Cited: Conveyancing Act 1919 (NSW), ss 7, 36A, 66F, 66G
Cases Cited: Commonwealth Bank of Australia v MacDonald (2000) 10 BPR 18,111; [2000] NSWSC 553
Degmam Pty Ltd (In Liq) v Wright (No 2) [1983] 2 NSWLR 354
Ferella v Official Trustee in Bankruptcy [2015] NSWCA 411
Kardos v Sarbutt (No 2) [2006] NSWCA 206
Neilan v Neilan [2019] NSWSC 66
Sydney Futures Exchange Ltd v Australian Stock Exchange Ltd (1995) 56 FCR 236
White v Shortall (2006) 68 NSWLR 650; [2006] NSWSC 1379
Woodson (Sales) Pty Ltd v Woodson (Australia) Pty Ltd (1996) 7 BPR 14,685
Category: Principal judgment
Parties: Wendy Yvonne Lewin (Plaintiff)
Suzanne Lewin (Defendant)
Representation:
Counsel:
M K Meek SC (Plaintiff)
A D Crossland (Defendant)
Solicitors:
Hartmann & Associates (Plaintiff)

File Number(s): 2018/54746
Publication restriction: None

Judgment

Introduction

By Summons filed on 19 February 2018 the plaintiff, Ms Wendy Lewin, claims relief under the Conveyancing Act 1919 (NSW) s 66G for the appointment of trustees for sale in respect of a company title unit in Elizabeth Bay (“the Unit”). The defendant, Ms Suzanne Lewin, is the plaintiff’s sister. She is in occupation of the Unit. She has been in occupation since 1985.
The appointment of trustees was for a time resisted by the defendant. Numerous directions hearings were held over the course of 2018, at which various orders and directions were made, including orders requiring the parties to put on pleadings. The matter was also referred to Court-annexed mediation. The mediation was held on 12 February 2019. It proved inconclusive. A further directions hearing was held on 15 February 2019. It was then envisaged that the matter would be listed for a final hearing to commence in the period from May to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lewin v Lewin

Details

AGLC: Lewin v Lewin [2019] NSWSC 380
Case: [2019] NSWSC 380
Decision Date: 05 April 2019

CaseChat Overview and Summary

In the matter of Lewin v Lewin, the court was tasked with resolving a dispute between co-owners of shares in a home unit company. The plaintiff sought an order for the appointment of trustees for the sale of the shares under section 66G(1) of the Conveyancing Act 1919 (NSW). The primary issue was whether the shares in question constituted "property" for the purposes of the statute and if they were held in "co-ownership." Additionally, the court had to determine whether the shares were held in "possession" and if it was appropriate to order the appointment of trustees for sale.

The court found that the shares in the home unit company were indeed "property" and that the parties held them in "co-ownership." The shares were also considered to be held "in possession." The court was satisfied that the conditions for appointing trustees for sale under section 66G(1) were met, and thus, ordered the appointment of trustees for the sale of the shares. Furthermore, the court held that the defendant's conduct in resisting the plaintiff's application was unreasonable and based on unsubstantiated allegations of impropriety or fraud. Consequently, the defendant was ordered to pay half of the plaintiff's legal costs from the defendant's share of the proceeds of sale.

The court's decision highlights the importance of the statutory trust for sale provisions in the Conveyancing Act 1919 (NSW) and the need for co-owners to act reasonably in disputes over the sale of shared property. The court's order for the defendant to pay half of the plaintiff's legal costs serves as a reminder that unreasonable conduct in such disputes may result in financial consequences for the party responsible for the unnecessary legal expenses.

Orders